Leaving the EU: What does this mean for family law

Leaving the EU What does this mean for family law

Leaving the EU: What does this mean for family law? Many international families are concerned they’ll lose access to justice.

Are you a cross border, UK/EU family? This blog is for you. But please remember to consult a lawyer who is an expert in international family law if you have any doubts.

When did the UK leave the EU

Friday 31st January 2020, at 11pm.

What about my child support, my divorce proceedings

Are you concerned:

  • your maintenance or child support will stop, or
  • divorce proceedings will go off the rails, or
  • children will be at a greater risk of abduction?

The answer is that all EU rules are staying firmly in place during the implementation period. So there’s really nothing to worry about – at least until the end of 2020.

How long is the implementation period

1st February 2020 to 31st December 2020. The Government will negotiate our future relationship – including whether useful EU family law rules will continue – during this period.

What are the useful EU family law rules

They cover:

  • ‘first past the post’ rule for starting divorces
  • recognition and enforcement of maintenance orders, and the recognition of divorces
  • enforcement of contact and residence orders, and orders for the return of children

‘First past the post’ rule for starting divorces

Why is this important? Because otherwise there could be proceedings going on at the same time in two different countries. 

Is family law near the top of the agenda

The Government is already working on an important piece of legislation: the Private International Law (Implementation of Agreements) Bill. This means international families will have access to justice under certain vital Hague Conventions. The Government is also aiming for us to sign up to the Lugano Convention.

What’s the Private International Law (Implementation of Agreements) Bill

The aim of this bill is to ensure three vital Hague Conventions will still apply even after the end of the implementation period.

Which Hague Conventions are covered 

The Private International Law (Implementation of Agreements) Bill covers:

  • 1996 Hague Convention – protection of children in cross-border disputes.
  • 2005 Hague Convention – ensures:
    • there’s no confusion about where a case should be heard, and
    • any resulting decision is recognised and enforced in other countries.
  • 2007 Hague Convention – the international recovery of child support. And makes it harder for parents who live abroad to avoid their maintenance obligations.

See page 28 of The Queen’s Speech of December 2019.

See my comments about these Hague Conventions in Brexit, Divorce and Family Law – what if there’s no dealIn this blog I make the point that we will still need to incorporate EU regulations into our family law system – we can’t just rely on Hague Conventions.

What’s the Lugano Convention

The Ministry of Justice reports that there is support for the UK to join the Lugano Convention. Why is this important? The Ministry of Justice says:

‘The agreement protects the rights of 17,000 UK nationals living in the EEA EFTA states and 15,000 EEA EFTA nationals living in the UK, ensuring that at the end of the transition period they will be able to enjoy broadly the same rights as they do now.’

But the Lugano Convention is by no means perfect. See my explanation of the Lugano Convention in Brexit White Paper – what you need to know.

What are the EEA EFTA states

Iceland, Liechtenstein, Norway, Switzerland, and the EU.

Leaving the EU: What does this mean for family law

Contact Family Lawyer Joanne Houston on 01962 217640 for an initial consultation on Leaving the EU: What does this mean for family law? In this 20 minute session she will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family lawyers. We offer Pay as you go costs. We offer Collaborative law solutions tailored to your family’s needs.

The topics covered in this blog post Leaving the EU: What does this mean for family law? are complex. They are provided for general guidance only. If any of the circumstances mentioned in this blog apply to you, seek expert legal advice.

image for Leaving the EU: What does this mean for family law? I love my mother by Himani Dsck on Wikimedia

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Brexit, Divorce and Family Law – What if there’s “No Deal”?

Brexit Divorce and Family Law

See February 2019 update, What Does Brexit No Deal Mean For Family Law 

Brexit, divorce and family law is a vital topic for international families and lawyers in the UK, and UK families in the EU, although you wouldn’t know it from the amount of media coverage it receives. Depending on the EU deal we get family law could be turned upside down. But what happens if there is no deal?

On 13 September 2018 the Government published its plans for family law in the event of a no deal Brexit, Handling Civil Cases that involve EU Countries if there’s No Brexit Deal

This follows the Brexit white paper on 12 July which I considered in my blog Brexit White Paper and Family Law – What You Need to Know. 

Who should read this blog about Brexit, divorce and family law?

International families with EU connection – were you or your ex or your children:

  • born in another EU country but live in the UK
  • born in the UK but live in another EU country?

Law practitioners and students might find it helpful, too.

What would happen if there was a no deal Brexit?

Our Government would repeal a host of EU regulations. Why? Because even if we kept these EU regulations the remaining EU countries would not consider we were covered by them.

What do these EU regulations do?

They provide rules for:

  • Jurisdiction, in other words, where to start Court cases
  • Procedures for child abduction cases under the Hague Convention
  • Recognition and enforcement of Court orders  

Should we panic?

We currently use domestic laws in international family disputes for non EU countries. And of course the UK is a member of the Hague Convention. Together these would cover some of the holes left by the EU regulations.

The Government would take steps to patch up the remaining holes left by the repealed EU regulations. This includes joining the 2007 Hague Maintenance Convention as soon as possible after 29 March 2019. See below for more on maintenance in the event of a no deal Brexit.

But there would be controversial changes to child abduction procedures and divorce jurisdiction. See below for more on children and child abduction and divorce jurisdiction.

Enforcement of maintenance orders and child support

We would join the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (‘the Hague Maintenance Convention’) as soon as possible. This provides broadly the same rules as the EU regulations.

This would make maintenance orders enforceable, although maintenance orders made between 29 March and 1 April 2019 could pose problems.

However the Hague Maintenance Convention is not so strong on jurisdiction which means it will not be clear where claims may be started and what happens if there are Court cases going on in different countries.

Make sure you seek expert legal advice if you have any concerns.

Court cases about children and child abduction

The 1996 Hague Convention on parental responsibility and protection of children (‘the 1996 Hague Convention’) covers jurisdiction, recognition and enforcement in children cases. This means families know where to start cases, and Court orders are recognised and enforceable in other countries.

But we would lose helpful EU regulations on child abduction procedures. These impose the following rules:

  • A stricter timetable
  • The children’s home country must make the final decision
  • The Court will hear evidence from the child.

These rules are significant in child abduction cases so it would be regrettable if they were lost.

See my blog about child abduction 10 Points about Child Abduction.

Also the 1996 Hague Convention lacks automatic enforcement of contact orders. This means parents will have to get their Court orders certified which of course creates delay.

Make sure you seek expert legal advice if you have any concerns.

Jurisdiction – where to start your divorce case

Jurisdiction in all our divorces, even non international families, is based on EU regulations. The Government would adopt these regulations so it is clear in England, Wales and Northern Ireland where a divorce can start.

But we would be losing the ‘first past the post’ rule for divorces.

What is the ‘first past the post’ rule and is it a good thing?

If you are in an international family there can be a choice of countries in which to start divorce proceedings. Under EU regulations a race can start if one country’s legal system benefits the wife, and the other, the husband (or the equivalent in same sex marriages or civil partnerships). This is because EU regulations say the first to start proceedings wins the race.

Some commentators say starting proceedings in a rush means the couple don’t have the opportunity to consider reconciliation or mediation or collaborative law. And Court proceedings are expensive and stressful – no one should rush into them.

But if there is a no deal Brexit there could be divorce proceedings about the same marriage going on at the same time in different countries. And there could be Court cases solely on the question of which country should hear the case. This would certainly be frustrating and expensive for international families. And it would make our busy Court system even busier, which means slower for everyone.

This rule is also known in legal circles as forum racing or ‘lis pendens’.

If it is important to you to start your divorce in a particular country, please do not delay seeking legal advice from an expert family law solicitor on Brexit, divorce and family law.

What about my ongoing international family law case?

What happens if you have a case ongoing on 29 March 2019? How would it continue? Would the eventual order be enforceable elsewhere?

The Government guidance says, “We will seek to provide legal certainty … Broadly speaking, cases ongoing on exit day will continue to proceed under the current rules. However, we cannot guarantee that EU Courts will follow the same principle, nor that EU Courts will accept or recognise any judgments stemming from these cases.”

So the answer is, no one knows, which is difficult if you are in this position. Please seek legal advice from an expert family law solicitor on Brexit, divorce and family law.

Same sex marriages and civil partnerships

The UK would remain the ‘forum of last resort’ for couples who enter marriages or partnerships in the UK. In other words these couples can start Court proceedings here. This is important. If another country doesn’t recognise their marriages or civil partnerships this is a bar to Court proceedings in that country.

What about the recognition of divorces?

The 1970 Hague Convention would still allow mutual recognition of divorces in the UK and the remaining EU countries.

Are we better off without the EU regulations?

In 2017 3.8 million people in the UK were citizens of another EU country. That’s about 6% of the UK population. Similarly, 6% of the UK population were born in another EU country (Full Fact). And in 2017 1.3 million people born in the UK lived in other EU countries (Full Fact)

Some commentators would welcome the repeal of EU regulations. They say family law would then be the same for all international families – EU and non EU.

But I say no, we would not be better off. Keeping the EU regulations, and keeping them synchronised across the EU, would be helpful for UK based international families with EU connections. And this of course applies to UK families living in the remaining EU countries too. But we are heading to leave the Court Of Justice Of The European Union (CJEU) so keeping EU regulations synchronised doesn’t seem likely.

There’s the option of signing the Lugano Convention as proposed in the Government’s white paper of July. But as I mention in my blog Brexit White Paper and Family Law – What You Need to Knowthe Lugano Convention would need knocking into shape before it was of much use.

Hopefully the Government will reach some sort of deal which will take into account these international families. And as the Government guidance states, “A scenario in which the UK leaves the EU without agreement … remains unlikely.”

Brexit, Divorce and Family Law – What if there’s “No Deal”?

Contact  Joanne Houston on 01962 217640 for free advice on Brexit, Divorce and Family Law – What if there’s “No Deal”? In this 20 minute session we will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.

image Worried Little Girl by Ignas Kukenys on Wikimedia

 

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